224 Wis. 130 | Wis. | 1937
The following opinion was filed January 12, 1937:
Upon these appeals the principal ultimate questions are, (1) whether, at the time of his injury, Cono Lib-rizzi was an employee of the Milwaukee News Company (hereinafter called the “News Company”), within the mean
The evidence establishes that on August 8, 1931, Librizzi, while assisting Harry Simon in delivering newspapers for the News Company to its customers, was injured while riding on a truck owned and operated by Simon, who carried an automobile liability insurance policy; that in January, 1932, an application for the payment of workmen’s compensation by the News Company was duly filed on behalf of Librizzi; that in April, 1932, his attorney applied for the dismissal of that application by consent, upon a stipulation stating that the relationship of employee and employer did not exist between Librizzi and the News Company, and Simon carried his own liability insurance covering the accident; that in response to a request by the Industrial Commission for details as to the reason for the dismissal, Librizzi’s attorney stated that he had concluded that there was no relation of master and servant between the News Company and Librizzi, and that as that was an essential jurisdictional element he thought it advisable to dismiss the application, and had started an action against the News Company and Simon to recover damages for the personal injuries sustained by Librizzi by reason of Simon’s negligent operation of his truck; that notwithstanding that stipulation the commission did not dismiss Librizzi’s application for compensation; that subsequently his complaint in that action was voluntarily dismissed after the court held, upon a preliminary trial, that Simon’s automobile liability insurance policy did not cover his truck; but that prior to that dismissal Librizzi had made statements under oath on an inquiry in respect to the proposed dismissal of his application for workmen’s compensation, and also on direct and adverse examina
In January, 1935, a hearing was requested on Librizzi’s undisposed of application for workmen’s compensation, and thereupon evidence was taken on that application by two of the Industrial Commission’s examiners, who made findings and conclusions to the following effect: That prior to and at the time of Librizzi’s injury, Simon delivered newspapers and magazines for the News Company as its employee, and received from it $45 per week for that service and the use of his truck, for which he furnished the necessary gasoline, oil, and repairs. That Aaron Trosch, an officer of the News Company, had employed Simon to work for it, and Trosch and George Ostendorf, another one of its employees, told Simon what and how to do that work, what stops he was to make and where to leave and to pile the newspapers and magazines; and that the News Company had full control of the details of the work performed by Simon, and he was an employee of that company. That at the time of his injury and for several weeks prior thereto Librizzi was “jumping stops” for Simon, who had requested the applicant to ride with him and “jump stops” for him, and in consideration of that help had, at times, given Librizzi small amounts of money and promised to use his influence to get a paper route for him as a newsboy and also to take him to Indianapolis ; and that at the time of the accident Librizzi was in the employ of Simon and performing service for him growing out of an incidental to that employment. However, in addition
The Industrial Commission, upon a petition to review, approved the examiners’ finding that Librizzi had been employed and paid by Simon, and had helped him in his work for the News Company and had been paid by him for that work. But the commission, contrary to the examiners’ determination, found and concluded, on the one hand, that Simon was an independent contractor under the News Company, instead of being one of its employees, and that he was not subject to the compensation act, and did not carry compensation insurance; but that, on the other hand, Librizzi had worked on Simon’s truck for approximately two months prior to his injury, and that his work brought him to the News Company’s establishment where he assisted in cleaning up its place, in tying and carrying bundles of newspapers and magazines from Simon’s truck, and he had waited for periods of an hour or more for the next delivery; that he had been given money for his work by Simon and also by the manager in charge of the News Company, and that through that manager and its treasurer, Trosch, the News Company saw Librizzi working both for Simon and also directly for it at various times; and that it had both actual and constructive knowledge that he was an employee of Simon at the time of his injury. Upon those facts and the commission’s further findings that Librizzi was fifteen years of age, and had been employed, required, suffered, and permitted to work without a written permit issued under sec. 1Ó3.05, Stats., the commission concluded and ordered, on July 16, 1935, that he was entitled, under sec. 102.60, Stats., to the payment by the News Company and its compensation insurance carrier of double the amount otherwise recoverable. Separate actions were com
“It has now discovered a mistake in the finding that ‘Simon was a contractor under the respondent Milwaukee News and that Simon was not subject to the Workmen’s Compensation Act, nor did he carry compensation insurance covering his employee’ as contained in the last three lines on the first page of the commission’s findings of fact and order and also in the statement of the formal findings of fact contained on page two, ‘that said Harry Simon was a contractor under the respondent Milwaukee News.’
“The commission amends its findings and order by striking out such findings and by substituting therefor the following finding :
“ ‘That said Harry Simon was an employee of the respondent Milwaukee News.’
“Except as amended, the commission reiterates the findings of fact and order made on July 16, 1935.”
Another action was commenced to vacate that last order, and upon the entry of the judgments affirming the award, the plaintiffs appealed therefrom.
Under the facts as they were ultimately found by the commission, the alleged liability of the News Company for ordinary or simple (as distinguished from double) compensation, under the Workmen’s Compensation Act, depends upon whether Librizzi can be considered an “employee” of the News Company as an employer, under the provision in sec. 102.07 (4), Stats., that the word “employee” as used in cli. 102, Stats. 1931, means, in addition to “Every person in the service of another under any contract of hire, express or implied,” also “all helpers and assistants of employees, whether paid by the employer or the employee, if employed with the knowledge, actual or constructive, of the employer” (with certain exceptions which are immaterial here). There
Likewise, there was ample evidence to establish 'the finding that for several weeks Librizzi was a helper or assistant of Simon in his employment for the News Company, and that Librizzi occasionally was given money therefor by Simon. Whether Librizzi’s status was that of an employee of Simon
Although the commission’s finding that the News Company had both actual and constructive knowledge that Lib-rizzi was an employee of Simon at the time of the injury was contrary to the examiners’ finding in that respect, the fact that the News Company had actual or at least constructive knowledge that Librizzi was a helper or assistant of its employee, Simon, was warranted by credible evidence to the following effect: During several weeks preceding Librizzi’s injury, four other boys (who assisted other drivers employed by the News Company) had frequently seen him unloading and assisting Simon in unloading newspapers and magazines from the latter’s truck onto the News Company’s platform and take them into its place of business, and had also seen him sweeping and cleaning up in that place, usually in the presence of Ostendorf, who told Librizzi to bring in the unloaded papers and magazines and to sweep and clean up, and who had given him fifteen cents to twenty-five cents for that work, and had also handed a slip to him for a magazine delivery to a customer, with directions to give it to Simon; and that occasionally Trosch had also seen Librizzi assisting Simon downstairs, and had sometimes also told Librizzi to do certain work. Although Ostendorf and Trosch denied those matters, and they are in conflict with some former testimony by Librizzi, those denials and conflicts merely resulted in issues of fact to be determined by the commission, and as there was evidence, which, if considered credible, sustains its findings, they must be permitted to stand.
In connection with contending that the commission erred in making the award under review, the appellants also claim that because the commission did not point out the specific grounds of a mistake, there cannot be sustained the final order of August 5, 1936 (quoted-above), in which it attempted to amend its findings and order of July 16, 1935, by substituting for its former finding that Simon was an independent contractor a finding that he was an employee of the News Company. In support of that claim appellants rely upon the rule stated in Edward E. Gillen Co. v. Industrial Comm. 219 Wis. 337, 342, 263 N. W. 167, 169, that,—
“. . . Orderly procedure requires the commission, when it sets aside, modifies, or changes its orders, findings, or awards, to indicate the nature of its mistake, as it has no power so to act unless it has discovered what is in fact a mistake.”
Due compliance with that rule would generally require more in correcting a mistake under sec. 102.18 '(4), Stats., than merely such a statement as the commission made herein, viz., that,—
“It has now discovered a mistake in the finding that ‘Simon was a contractor under the’ News Company.”
“When on July 16, 1935, the commission found that Harry Simon was an independent contractor it disregarded entirely the testimony of record that Simon worked under the supervision and control of Mr. Trosch, the manager of the Milwaukee News, and that his route lists were subject to revision from day to day and that he received continuous instructions with reference to the delivery service he was rendering to the Milwaukee News.”
Inasmuch as it is clearly obvious that the commission did make a mistake, and its statement in its amending order that “it has now discovered a mistake” was followed by specifying the words to be stricken and those which were to be substituted therefor, there was sufficient indication as to the nature of the mistake to warrant and sustain the order by which it was corrected.
Appellants also contend that because there was no proof as to Librizzi’s earning ability at the age of twenty-seven years, the commission erred in making the award upon the basis of its finding “that upon attaining the age of twenty-seven, had he not been injured, applicant would have earned a wage entitling him to compensation for the maximum rate.” That contention cannot be sustained. In sec. 102.11 (3), Stats., which prescribes that the method for computing indemnity to accrue for permanent disability in the case of an injured employee who is under twenty-seven years of age shall be on the basis of his weekly earnings, that he, if not disabled, would probably earn after attaining the age of twenty-seven years, it is also provided that,—
“Unless otherwise established his earnings shall be taken as equivalent to the amount upon which maximum weekly indemnity is payable.”
The News Company also contends that even if by virtue of the meaning of the term “employee,” as defined in sec. 102.07 (4), Stats., Librizzi must be considered, as a matter of law, an employee of the News Company, that nevertheless the commission erred in holding that he was entitled to the payment of double the amount of compensation by the News Company, because in point of fact its status in respect to him was not that of an “employer” under contract, express or implied. It contends that secs. 102.60 and 102.62, Stats. 1931, — providing, respectively, for double the amount of compensation, and that the employer’s liability therefor shall be primary, — are penalty statutes and must be strictly construed, and therefore, even if sec. 102.07 (4), Stats. 1931, is applicable to Librizzi’s status, as the News Company was not in fact his employer, he was not its employee within the meaning of secs. 102.60 and 102.62, Stats. 1931, because under them there is contemplated a direct employer, in fact, and the penalty of double the amount of compensation can be imposed only on such an employer. Upon considering the several statutory provisions involved in those contentions, we have concluded that they cannot be sustained. As stated above, because Librizzi assisted Simon in his work as an’employee of the News Company, with the latter’s knowledge, actual and constructive, arid received money therefor from Simon, he was, under and by virtue of sec. 102.07 (4), Stats., an “employee,” as a matter of law, of the News Company within the meaning of that term as it is used anywhere in
The provision in sec. 102.60, Stats., in respect to double compensation for minors illegally employed reads:
“When the 'injury is sustained by a minor illegally employed, compensation and death benefits shall be as follows: (1) Double the amount otherwise recoverable, if the injured employee is a minor of permit age, and at the time of the injury is employed, required, suffered or permitted to work without a written permit issued pursuant to section 103.05, except as provided in subsection (2).”
By giving the word “employee,” where it is used in that section, the plain and unambiguous meaning which sec. 102.07 (4), Stats., prescribes that it shall have as it is used in ch. 102, that word where it is used in sec. 102.60, Stats., and all provisions therein are clearly applicable to Librizzi and the News Company, in so far as the status of each as an employee and an employer, respectively, is concerned. Consequently, as Librizzi, under the facts herein, must be considered an “employee,” as a matter of law, of the News Company, the fact that he, as a minor of permit age, who had no permit under seq. 103.05, Stats., was “suffered or permitted” by that company to assist Simon, with its knowledge, actual or constructive, in performing work for it, is sufficient to render it as an employer, as a matter of law, liable to Librizzi under
“Every employer employing or permitting a minor to work as provided in this section shall:
“(a) Receive and file the permit before the minor is permitted to do any work. . . . ”
Thus, an employer may violate sec. 103.05, Stats., if he but permits a minor who has no permit to work in his establishment or to deliver any merchandise; and neither the absence of intent to illegally employ or permit such minor to work, nor of actual or constructive knowledge of the lack of such a permit constitutes an excuse in law for the reason that the statute expressly requires every employer “employing or permitting” such a minor to work to “receive and file the permit before the minor is permitted to do any work.”
The News Company further contends that it cannot be held to have violated sec. 103.05, Stats., because in respect to Lib-rizzi it cannot be considered the employer as that term is defined in sec. 101.01 (3), Stats., which definition is made ap
On the other hand, the applicant contends that the commission erred in not awarding treble compensation to him. He brought no action to set aside the commission’s award in that respect. Neither did he appeal from the judgment affirming the award, or serve any notice under sec. 274.12, Stats., to review that judgment until on November 25, 1936, which was after the cases had been .set for hearing in this court. Under those circumstances the service of his notice to review was too late to entitle him to a review because it was not served “before the case is set down for hearing in the supreme court,” as is required by sec. 274.12, Stats.
By the Court. — Judgments affirmed.
A motion for a rehearing was denied, with $25 costs in one case only, on March 9, 1937.